LORD SLYNN OF HADLEY
My Lords, The appellant joined the Metropolitan Police in May 1987. In February 1988 she
was stationed at Harrow Road Police Station. She alleges that on 15 February 1988 in her
police residential accommodation at Marylebone she was raped and buggered by a fellow
officer at a time when they were both off duty. She says that on 3 March 1988 she
complained to her reporting Sergeant and thereafter she complained to other officers about
what had happened. A writ was issued on 4 February 1994 against the respondent and a
statement of claim served on 20 June 1994. She alleged that the respondent is to be
treated as her employer and that in breach of his duty to her as such, in breach of
contract and of statutory duty and negligently he failed to deal properly with her
complaint but "caused and/or permitted officers to maliciously criticise, harass,
victimise, threaten, and assault and otherwise oppress her" as set out in the
statement of claim. Alternatively she alleged that the respondent was liable vicariously
for the acts of officers under his command in the Metropolitan Police. The respondent
applied by summons dated 1 September 1994 to strike out the statement of claim under Order
18 r.19 of the Rules of the Supreme Court and under the inherent jurisdiction of the Court
on the ground that it disclosed no reasonable cause of action and/or that it was frivolous
and vexatious or otherwise an abuse of the process of the Court. On 22 November 1994
Master Prebble struck out the writ and the statement of claim; an appeal from that order
was dismissed by Wright J on 7 September 1995 and an appeal from the judge dismissed by
the Court of Appeal on 3 July 1997. By the date of the hearing before the Court of Appeal
a proposed amended statement of claim had been served and it is appropriate to consider
the present appeal on the basis of that document. The facts stated in it must for present
purposes be taken to be true. It is agreed that the issues are whether those facts
disclose a cause of action in negligence or for another tort committed by the respondent
personally or for which he is vicariously liable by virtue of section 48 of the Police Act
1964, or for any other unlawful act remediable in damages for which the respondent is
vicariously liable or for intimidation or for acts of misfeasance in a public office. Two
features of the claim need to be emphasised. In the first place there is no allegation of
a conspiracy between the various police officers named to harm or to fail to look after
the appellant. In the second place the appellant does not rely simply on individual acts
taken separately; she attaches importance to the cumulative effect of the acts
particularly in regard to the causation of psychiatric injury which she alleges. In the
appellant's case before your Lordships some 89 allegations of hostile treatment are listed
as taken from the statement of claim. They are summarised in the appellant's case as being
repeated acts of

"1. Ostracism including refusal or failures to support her whilst on duty and in
emergency situations,
2. Being 'advised' or told to leave the police force,
3. Harassment and victimisation, and
4. Repeated breaches of procedure".

Some of these allegations taken alone may seem relatively minor. Others are much more
serious. There are, moreover, complaints that more senior officers reporting on her wrote
unfair reports sometimes with the purpose of pushing her out of, or persuading her to
leave, the police force. She says that she was excluded from duties she could and should
have carried out. Evans LJ in his judgment in the Court of Appeal has summarised the main
events at the various police stations where she served. I gratefully adopt and therefore
do not repeat his summary. At the heart of her claim lies the belief that the other
officers reviled her and failed to take care of her because she had broken the team rules
by complaining of sexual acts by a fellow police officer. She also brought proceedings
before an Industrial Tribunal alleging breaches of the Sex Discrimination Act 1975 and in
particular victimisation contrary to section 4 (1) (d) of the Act. It was contended that
the Commissioner was liable under section 41 of the Act for the acts of the constable said
to have raped her. That claim failed before the Industrial Tribunal, the Employment Appeal
Tribunal and the Court of Appeal essentially because it was accepted that the constable
was not acting in the course of his employment. There is no appeal from that decision of
the Court of Appeal. The principal claim raised in the action is one of negligence-the
"employer" failed to exercise due care to look after his "employee".
Generically many of the acts alleged can be seen as a form of bullying-the
"employer" or those to whom he delegated the responsibilities for running his
organisation should have taken steps to stop it, to protect the "employee" from
it. They failed to do so. They made unfair reports and they tried to force her to leave
the police. Of course, the police constable does not have an ordinary contract of
employment with the Commissioner or with anyone else: he maintains his traditional status
as a constable. Yet it is clear, or at the least arguable that duties analogous to those
owed to an employee are owed to officers in the police service (see Frost v. Chief
Constable of South Yorkshire Police [1999] 2 A.C. 455, Knightley v. Johns
[1982] 1 All E.R. 851, Costello v. Chief Constable of Northumbria [1999] 1 All E.R.
550. Moreover it is also to be borne in mind that by section 88 (1) of the Police Act
1996:- "The Chief Officer of Police for any police area shall be liable in respect of
torts committed by constables under his direction and control in the performance or
purported performance of their functions in like manner as a master is liable in respect
of torts committed by his servants in the course of their employment, and accordingly
shall in respect of any such tort be treated for all purposes as a joint tortfeasor."
There is not here any specific allegation of breach of statutory duty giving rise to a
claim in damages. As far as the common law claim is concerned it is recognised that
following a complaint by a police officer a senior officer may set in motion an inquiry
with the possibility of a further complaint to the Police Complaints Authority. Schedule 1
to the Police (Discipline) Regulations 1985 specifically recognise as
"Misconduct" "2. Misconduct towards a member of a police force, which
offence is committed where - (a) the conduct of a member of a police force towards another
such member is oppressive or abusive, or (b) a member of a police force assaults another
such member". This complaints procedure may or may not in particular cases constitute
a sufficient remedy but its existence does not in itself rule out the possibility of a
claim in negligence. The main question is thus whether it is plain and obvious that no
duty of care can be owed to the appellant by the Commissioner on the facts alleged here or
that if there can be such a duty whether it is plain and obvious here that the facts
cannot amount to a breach. If an employer knows that acts being done by employees during
their employment may cause physical or mental harm to a particular fellow employee and he
does nothing to supervise or prevent such acts, when it is in his power to do so, it is
clearly arguable that he may be in breach of his duty to that employee. It seems to me
that he may also be in breach of that duty if he can foresee that such acts may happen and
if they do, that physical or mental harm may be caused to an individual. I would accept
(Evans LJ was prepared to assume without deciding) that if this sort of sexual assault is
alleged (whether it happened or not) and the officer persists in making complaints about
it, it is arguable that it can be foreseen that some retaliatory steps may be taken
against the woman and that she may suffer harm as a result. Even if this is not
necessarily foreseeable at the beginning it may become foreseeable or indeed obvious to
those in charge at various levels who are carrying out the Commissioner's responsibilities
that there is a risk of harm and that some protective steps should be taken. The Courts
have recognised the need for an employer to take care of his employees quite apart from
statutory requirements (Spring v. Guardian Assurance plc [1994] I.C.R. 596 at 628E.
As to ill treatment or bullying see Wigan Borough Council v. Davies [1979] I.C.R.
411 at p. 419 (a claim in contract); Wetherall (Bond Street W1) Ltd v. Lynn [1978]
1 W.L.R. 200 (a constructive dismissal case); Veness v. Dyson Bell & Co [The
Times, 25 May 1965] where Widgery J refused to strike out a claim that "[the
plaintiff] was so bullied and belittled by her colleagues that she came to the verge of a
nervous breakdown and had to resign". and Petch v. Customs & Excise
Commissioners [1993] I.C.R. 789 at 795C. This can be the position whether the
foreseeable harm is caused to the mind or to the body of the employee Mount Isa Mines
v. Pusey 125 C.L.R. 383, 404Windeyer J. On the basis of these cases, subject
to consideration of one overriding point, I do not find it possible to say (any more than
Evans L J was prepared to say) that this is a plain and obvious case that (a) no duty
analogous to an employer's duty can exist; (b) that the injury to the plaintiff was not
foreseeable in the circumstances alleged and (c) that the acts alleged could not be the
cause of the damage. As to the last of these whilst I accept that many of the individual
items taken in isolation are at the least very unlikely to have caused the illness
alleged, the appellant's case puts much emphasis on the cumulative effect of what happened
under the system as it existed. That leaves the question on which the Court of Appeal
decided against the appellant. Are there reasons of policy why such a claim should not be
entertained by the Court-or more correctly at this stage is it plain and obvious that
policy reasons preclude such a claim being taken to trial so that it should now be struck
out. Put another way can it be said that it is not "fair just and reasonable" to
recognise a duty of care Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605. The
courts have accepted that the police may not be sued for negligence in respect of their
activities in the investigation and suppression of crime: Elguzouli-Daf v. Commissioner
of Police of the Metropolis and the CPS [1995] Q.B. 335. The Court of Appeal in
particular took the view in the present case that the decisions of the House in Hill v.
Chief Constable of West Yorkshire [1989] A.C. 53 and Calveley v. Chief Constable of
the Merseyside Police [1989] A.C. 1228 precluded a duty of care for policy reasons. In
Hill the plaintiff claimed damages against the Chief Constable for negligence in
the investigation of crimes preceding the murder of the plaintiff's daughter S. It is said
that if care had been taken that would have prevented the murder of S. Lord Keith said
"There is no question that a police officer, like anyone else, may be liable in tort
to a person who is injured as a direct result of his acts or omissions. So he may be
liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious
prosecution, and also for negligence. Instances where liability for negligence has been
established are Knightley v. Johns [1982] 1 W.L.R. 349 and Rigby v. Chief
Constable of Northamptonshire [1985] 1 W.L.R. 1242. Further, a police officer may be
guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to
perform by common law or by statute: see Reg. v. Dytham [1979] Q.B. 722, where a
constable was convicted of wilful neglect of duty because, being present at the scene of a
violent assault resulting in the death of the victim, he had taken no steps to
intervene." (p.59 B) He held however that no duty of care arose: "But if there
is no general duty of care owed to individual members of the public by the responsible
authorities to prevent the escape of a known criminal or to recapture him, there cannot
reasonably be imposed upon any police force a duty of care similarly owed to identify and
apprehend an unknown one." (p.62E) Accordingly he held that an action for damages
should not lie as to the manner in which a criminal investigation is carried out.
"The manner of conduct of such an investigation must necessarily involve a variety of
decisions to be made on matters of policy and discretion, for example as to which
particular line of inquiry is most advantageously to be pursued and what is the most
advantageous way to deploy the available resources. Many such decisions would not be
regarded by the courts as appropriate to be called in question, yet elaborate
investigation of the facts might be necessary to ascertain whether or not this was so. A
great deal of police time, trouble and expense might be expected to have to be put into
the preparation of the defence to the action and the attendance of witnesses at the trial.
The result would be a significant diversion of police manpower and attention from their
most important function, that of the suppression of crime." (p.63F) In Calveley
"The police officers brought actions in negligence against the chief constables, who
by virtue of section 48(1) of the Police Act 1964 were vicariously liable for the
investigating officers responsible for the investigations, alleging that the officers had
failed to conduct the proceedings properly or expeditiously and claiming damages, inter
alia, in respect of the loss of overtime earnings they would have received during the
periods of suspension, and for injury to reputation." (p. 1228F-G). The House felt
that there was no common law duty of care owed by the investigating officer in respect of
delay in the conduct of the investigation under the regulations since neither anxiety, ill
health nor injury to reputation constituted reasonably foreseeable damage capable of
sustaining an action in negligence. Moreover it was contrary to public policy to allow
such a claim to be brought. Lord Bridge said that "Likewise it is not reasonably
foreseeable that the negligent conduct of a criminal investigation would cause injury to
the health of the suspect, whether in the form of depressive illness or otherwise
However, any suggestion that there should be liability in negligence in such circumstances
runs up against the formidable obstacles in the way of liability in negligence for purely
economic loss. Where no action for malicious prosecution would lie, it would be strange
indeed if an acquitted defendant could recover damages for negligent investigation.
Finally, all other considerations apart, it would plainly be contrary to public policy, in
my opinion, to prejudice the fearless and efficient discharge by police officers of their
vitally important public duty of investigating crime by requiring them to act under the
shadow of a potential action for damages for negligence by the suspect". (p.1238C-G)
I do not consider that either of these cases is conclusive against the appellant in the
present case. It is true that one of her complaints is the failure to investigate the
assault on her and that if taken alone would not constitute a viable cause of action. But
the complaints she makes go much wider than this and she is in any event not suing as a
member of the public but as someone in an "employment" relationship with the
respondent. Even the failure to investigate is part of her complaint as to that. Entirely
different factors to those considered in Hill arise. She is not as in Calveley
complaining of delays in the investigation or procedural irregularities. It does not seem
to me that it is an answer here as it was in Calveley to say that the appellant
should proceed by way of judicial review. Here there is a need to investigate detailed
allegations of fact. It has to be accepted of course that this detailed investigation
would take time and that police officers would be taken off other duties to prepare the
case and give evidence. But this is so whenever proceedings are brought against the police
or which involve the police. Sometimes that has to be accepted. Here the allegations of
the systematic failure to protect her are complex (and some pruning may be possible,
indeed advantageous) but that in itself does not make the claims frivolous or vexatious or
an abuse of the process of the court. It has been said many times that the law of
negligence develops incrementally so that the fact that there is no reported case
succeeding against the police similar to the present one is not necessarily a sufficient
reason for striking out. It is very important to bear in mind what was said in X v.
Bedfordshire County Council [1995] 2 A.C. 633, in Barrett v. Enfield London Borough
Council [1999] 3 W.L.R. 79 and in W. v. Essex County Council [2000] 2 W.L.R.
601(H.L.) as to the need for caution in striking out on the basis of assumed fact
in an area where the law is developing as it is in negligence in relation to public
authorities if not specifically in relation to the police. I would accordingly accept that
the main claim against the Commissioner for breach of personal duty (although the acts
were done by those engaged in performing his duty) should not be struck out. The
plaintiff's case on vicarious liability is more tenuous since it is difficult to see how
many of the acts could have caused the psychiatric injury alleged. Contrary to what the
Court of Appeal thought the appellant does allege malice so that the claim for misfeasance
in a public office is not barred on the ground that malice is not alleged. I agree with
the Court of Appeal that the difficulties of establishing intimidation as a separate tort
may be considerable. I have come to the conclusion, however, that the facts which are
needed to establish these claims will also feature in the negligence claim: the argument
whether those facts establish any of the other claims should be relatively short. If the
appellant fails on the main way she puts her case she seems at this stage unlikely to
succeed on the others (though that is not inevitably so). If she succeeds on the main way
she puts her claim she does not need the other ways. Whilst not giving any indication
either way as to whether the case is likely to succeed I hold that this is not a case
which plainly and obviously must fail. I would accordingly allow the appeal.

LORD JAUNCEY OF TULLICHETTLE
My Lords, I have had the advantage of reading in draft the speech of my noble and learned
friend Lord Slynn of Hadley and I agree that it would be inappropriate at this stage to
strike out the claim and that the appeal should therefore be allowed. However I should
like to mention one matter. The claim falls naturally into two parts, namely:- (1) That
police officers negligently failed to deal with the appellant's complaint of rape by a
fellow officer; and (2) the subsequent treatment of the appellant by fellow officers
consequent upon her making the above complaint. I have nothing to add to what my noble and
learned friend has said about (2) (supra). In relation to (1) I consider that the facts
relating thereto may be relevant only as narrative. In Hill v. Chief Constable of West
Yorkshire [1989] A.C. 53 this House held that public policy precluded an action for
damages in negligence against the police arising out of the manner in which they
investigated crime, in that case the activities of a serial killer. I see no reason why
this principle should not apply equally where the subject of the investigation is a police
officer alleged to have committed, while off duty, an offence against a fellow officer. In
Calveley v. The Chief Constable of Merseyside [1989] 1 A.C. 1228 this House
rejected the proposition that a police officer investigating any crime suspected to have
been committed, whether by a civilian or a member of a police force, owed to the suspect a
duty of care at common law, concluding inter alia that the imposition of such a
duty would be contrary to public policy. In that case the suspects being interrogated were
police officers. If no such duty is owed to suspect police officers then I cannot see that
it should be owed to a police officer complainer who is likely to be far less affected by
the manner of any investigation. For these reasons, in agreement with Evans L.J. in the
Court of Appeal, I do not consider that the appellant's allegations of failure to deal
with her complaint of rape would, if proved, constitute a cause of action.

LORD CLYDE
My Lords, I have had the advantage of reading in draft the speech of my noble and learned
friend Lord Slynn of Hadley. For the reasons he gives, I, too, would allow the appeal.

LORD HUTTON
My Lords, I have had the advantage of reading in draft the speech of my noble and learned
friend Lord Slynn of Hadley which sets out the background to the present case and the
issues which arise for determination and I gratefully adopt his account. I am in full
agreement with his speech but I wish to make some observations of my own on the
plaintiff's claim for negligence. An important part of the plaintiff's claim for
negligence is that she was subjected to protracted harassment and victimisation by other
officers because she had broken a workplace taboo in making a complaint against a male
colleague, and that the Commissioner was in breach of his duty to her because he failed to
protect her against such treatment. The substance of her allegation is found in paragraph
VIIA of her Statement of Claim as follows: "However the Metropolitan Police and/or
officers of the Metropolitan Police, both singly and/or in combination, have negligently .
. . failed to deal properly or at all with her complaint in relation to this assault and
her complaints about subsequent matters, and have caused and/or permitted officers to
maliciously criticise, harass, victimise, threaten, and assault and otherwise oppress her
as hereinafter set out. The Plaintiff will ask the Court to construe the facts and matters
set out below as part of a course or courses of conduct towards her, as well as
individually." Where the defendant brings an application to strike out before the
facts of the case have been investigated it is necessary to proceed on the basis that the
facts alleged in the Statement of Claim are true. If the facts alleged by the plaintiff in
her Statement of Claim are true they disclose a situation of gravity which should give
rise to serious concern that a young policewoman should be treated in the way she alleges
and that no adequate steps were taken by senior officers to protect her against
victimisation and harassment. However it is important to emphasise that at this stage the
truth of her allegations is only an assumption. It may be that on full investigation at a
trial the allegations will be shown to be groundless or exaggerated. But on the basis that
the allegations contained in the Statement of Claim are true I am of opinion that this was
not a case in which the Statement of Claim should have been struck out as disclosing no
reasonable cause of action or as being frivolous or vexatious or an abuse of the process
of the Court. I consider that a person employed under an ordinary contract of employment
can have a valid cause of action in negligence against her employer if the employer fails
to protect her against victimisation and harassment which causes physical or psychiatric
injury. This duty arises both under the contract of employment and under the common law
principles of negligence.

In Frost v. Chief Constable of South Yorkshire Police [1999] 2 A.C. 455, 497H
Lord Steyn stated: "The rules to be applied when an employee brings an action against
his employer for harm suffered at his workplace are the rules of tort . . . The duty of an
employer to safeguard his employees from harm could also be formulated in contract. In
that event, and absent relevant express provisions, a term is implied by law into the
contract as an incident of a standardised contract . . . But such a term could not be
wider in scope than the duty imposed by the law of tort."

In Wigan Borough Council v. Davies [1979] I.R.L.R. 127 Arnold J. sitting in the
Employment Appeal Tribunal upheld the decision by an Industrial Tribunal that there was an
implied term in the applicant's contract of employment that "the employer shall
render reasonable support to an employee to ensure that the employee can carry out the
duties of his job without harassment and disruption by fellow workers."

And in Veness v. Dyson, Bell & Company (25th May 1965), where there was an
application by the defendants to strike out the Statement of Claim, the brief report in
the Times records the judgment of Widgery J. as follows: "The plaintiff's pleadings
told a story of persecution and bullying by office colleagues at various times between
1953 to 1959, when the plaintiff was employed by the defendants, first as a secretary and,
subsequently, as a personal clerk to the partner Mr. Liddell. . . . his Lordship was not
prepared to say that the plaintiff's statement of claim failed to disclose a cause of
action for want of an allegation that the plaintiff's injuries were reasonably foreseeable
. . . . in the end the issue might be one of degree depending on the reasonableness or
otherwise of the conduct of the parties and, as such, was not suitable for disposal in the
pleadings as a preliminary point of law." It is not every course of victimisation or
bullying by fellow employees which would give rise to a cause of action against the
employer, and an employee may have to accept some degree of unpleasantness from fellow
workers. Moreover the employer will not be liable unless he knows or ought to know that
the harassment is taking place and fails to take reasonable steps to prevent it. But the
allegations made by the plaintiff were serious and were known to senior officers in the
chain of command leading up to the Commissioner, and if the claim brought by the plaintiff
had been brought against an ordinary employer I consider that it could not have been
struck out on the ground that it disclosed no cause of action or was frivolous or
vexatious.

In Frost v. Chief Constable of South Yorkshire Police, where actions for
negligence were brought by police officers against their Chief Constable, this House
regarded the officers as being quasi-employees of the Chief Constable. Lord Goff of
Chieveley stated at p. 481A:

"An employee (I will for present purposes include in this category a
'quasi-employee' such as a police officer who, although he holds an office and is not
therefore strictly an employee, is owed the same duty by his 'employer' -here the Chief
Constable of South Yorkshire Police) may recover damages from his employer in respect of
psychiatric injury suffered by him by reason of his employer's breach of duty to
him."

And at p. 497E Lord Steyn stated:

"It is true that there is no contract between police officers and a chief
constable. But it would be artificial to rest a judgment on this point: the relationship
between the police officers and the chief constable is closely analogous to a contract of
employment. And I am content to approach the problem as if there was an ordinary contract
of employment between the parties."

See also per Lord Griffiths at p. 464A and Lord Hoffmann at p. 505D.

Therefore, in my opinion, the plaintiff has a cause of action against the Commissioner
unless he can establish at this stage that on grounds of public policy he owed the
plaintiff no duty of care to protect her against victimisation and harassment by her
fellow officers. It was on this ground that the Court of Appeal upheld the decision of
Master Prebble and of Wright J. that the Statement of Claim should be struck out, and it
was on this ground that Mr. Seabrook Q.C. for the Commissioner principally resisted the
plaintiff's appeal.

Mr. Seabrook relied on the decisions of the House in Hill v. Chief Constable of West
Yorkshire [1989] A.C. 53 and Calveley v. Chief Constable of the Merseyside Police
[1989] A.C. 1228 in support of his submission that it would be contrary to public policy
to hold that the Commissioner owed a duty of care to the plaintiff. In Hill Lord
Keith recognised at p. 59C that a police officer is not entitled to a general immunity
against liability in tort in respect of his acts or omissions, but held on grounds of
public policy that the police owed no general duty of care to members of the public to
identify or apprehend an unknown criminal. He set out the considerations of public policy
at p. 63C-H which, briefly summarised, were that the imposition of the liability contended
for by the plaintiff would be unlikely to reinforce appreciably the general sense of
public duty which motivated police forces in carrying out their function in the
investigation and suppression of crime; that some actions involving allegations of
negligence in the apprehension of criminals might require the courts to enter deeply into
the general nature of a police investigation involving a variety of decisions on matters
of policy and discretion, such as what particular line of enquiry to pursue and what was
the most advantageous way to deploy available resources, which would be inappropriate for
the courts to enter upon and which would require the courts to conduct an elaborate
investigation of the facts; and that a great deal of police time, trouble and expense
would be taken up in preparing for the defence of such an action and in the attendance of
witnesses at the trial, with the result that there would be a significant diversion of
police manpower and attention from their most important function which was the suppression
of crime.

In Calveley the House rejected a submission that a police officer investigating
a crime suspected of having been committed by a member of the public or an offence against
discipline suspected to have been committed by a fellow officer owed a duty of care at
common law to the suspect. Lord Bridge of Harwich stated at p. 1238F:

". . . it would plainly be contrary to public policy, in my opinion, to prejudice
the fearless and efficient discharge by police officers of their vitally important public
duty of investigating crime by requiring them to act under the shadow of a potential
action for damages for negligence by the suspect."

In reliance on these decisions the Commissioner advanced the argument in paragraph
4(iv) and (v) of his written case:

"(iv) Even a cursory examination of the allegations made in the substituted
Statement of Claim gives an insight into the gargantuan task that would be involved in
investigating and litigating the proliferation of facts and issues. If there are in fact
no countervailing public interests there is a separate and discrete public interest in
disposing of the claim.

(v) Otherwise, if the matter were not to be decided at the interlocutory stage and the
action allowed to proceed to trial, then the Respondent would be exposed to the mischief
which underlies the established public policy immunity principles. The Court would be
required to enquire into matters of police policy and discretion, issues of deployment of
personnel and resources, and the investigative and operational actions and decisions of
numerous police officers in a catalogue of unrelated incidents spanning a period of 4½
years."

These are arguments of substance, but in weighing them it is important to have regard
to the words of Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council
[1995] 2 A.C. 633, 749G:

"Sir Thomas Bingham M.R. took the view, with which I agree, that the public policy
consideration which has first claim on the loyalty of the law is that wrongs should be
remedied and that very potent counter-considerations are required to override that
policy.ante, p. 633C-D"

Mr. Seabrook did not seriously dispute the suggestion put to him in the course of
argument that in some circumstances the Commissioner could be liable in negligence (like
any ordinary employer) to his officers for providing unsafe office premises for them to
work in or in providing unsafe articles for them to use, for example, soap containing
harmful ingredients which caused dermatitis. And as an employee working under an ordinary
contract of employment and alleging that she had been subjected to serious harassment and
victimisation and that her employer had failed to take reasonable steps to protect her
would have a cause of action fit to go to trial, I consider that strong grounds arising
from public policy considerations must be shown to justify striking out the plaintiff's
action.

In my opinion the decisions in Calveley and Hill are distinguishable on
the facts of this case. This is not a case in which the plaintiff's allegations relate
only to negligence by the police in the investigation of an offence. As an important part
of her case she complains of harassment and victimisation after she had made an allegation
of rape against a fellow officer, and I consider that the fact that the alleged harassment
and victimisation were triggered by the allegation of the offence does not bring that
complaint within the ambit of the type of claim where the House held that considerations
of public policy exclude the existence of a duty of care. In this case the plaintiff
relies on the relationship of quasi-employee and employer which exists between her and the
Commissioner as giving rise to his duty of care, and this was a factor absent in Calveley
and Hill.

I consider that in Swinney v. Chief Constable of Northumbria PoliceForce [1997]
Q.B. 464, 484B Hirst L.J. was right to state that where the police claim immunity against
an action for negligence public policy must be assessed in the round, which means
assessing the considerations referred to in Hill together with other considerations
bearing on the public interest in order to reach a fair and just decision. In Costello
v. Chief Constable of Northumbria [1999] 1 All E.R. 550 a woman police constable sued
the Chief Constable for the negligence of a police inspector in failing to go to her
assistance when she was attacked by a prisoner in a cell at a police station. The High
Court and the Court of Appeal rejected a claim by the Chief Constable in reliance on Hill
that as a matter of public policy neither he nor the inspector owed a duty of care to the
plaintiff. May L.J. at p. 555d stated the argument advanced on behalf of the Chief
Constable as follows:

"Mr. Robertson further submits that the courts are not the appropriate place to
determine whether in operational circumstances a police constable who fails to go to the
assistance of another police constable or a member of the public may have failed in any
duty. The internal affairs of police forces are regulated by statute and regulation,
including the Police (Discipline) Regulations 1985, SI 1985/518. Insp Bell may have been
in breach of, for instance, paras 1 and 4(a) of Sch 1 to these regulations. The
regulations contain no express provision to the effect that a police constable may not
bring an action against his chief constable arising from omissions of a fellow police
officer. But Mr. Robertson submits that Waters v. Commissioner of Police of the
Metropolis [1997] I.C.R. 1073, which followed Calveley v. Chief Constable of the
Merseyside Police [1989] 1 All E.R. 1025, [1989] A.C. 1228 is authority for the
proposition that in circumstances such as those in the present case no actionable duty of
care arises."

In rejecting this argument the learned Lord Justice stated at p. 564g:

"There is in my view in this case a strong public policy consideration to balance
with those identified in Hill's case, that is that the law should accord with
common sense and public perception. I am sure that Astill J. was correct to say that the
public would be greatly disturbed if the law held that there was no duty of care in this
case. The particular circumstances of this case should not be left solely to internal
police discipline. In addition, the public interest would be ill-served if the common law
did not oblige police officers to do their personal best in situations such as these. The
possibility of other sources of compensation is a relevant consideration, but not in my
view more than that. Mr. Robertson's floodgates submission is no more persuasive in this
case than in others where there should be a duty."

If the present case goes to trial the preparation of the defence will take up much time
and effort on the part of police officers, but this is a consequence faced by defendants
in many actions and I do not consider that it is a consideration of sufficient potency to
counterbalance the plaintiff's claim that she is entitled to have a remedy for a serious
wrong. Moreover if the plaintiff succeeds at the trial in proving in whole or in
substantial part the truth of her allegation that she was subjected to serious and
prolonged victimisation and harassment which caused her psychiatric harm because she had
made an allegation of a serious offence against a fellow officer and that the Commissioner
through his senior officers was guilty of negligence in failing to take adequate steps to
protect her against such treatment, such proof would reveal a serious state of affairs in
the Metropolitan Police. If such a state of affairs exists I consider that it is in the
public interest that it should be brought to light so that steps can be taken to seek to
ensure that it does not continue, because if officers (and particularly women officers who
complain of a sexual offence committed against them by a male colleague) are treated as
the plaintiff alleges, citizens will be discouraged from joining the police, or from
continuing to serve in the police after they have joined, with consequent harm to the
interests of the community. In my opinion this is a consideration which carries
significant weight when placed in the scales against the argument that the continuance of
the action will place unreasonable and disproportionate burdens on the police and distract
them from their primary task of combating crime.

A separate argument advanced on behalf of the Commissioner was that there was no basis
for allegations that the many different individual police officers accused of acts of
harassment and victimisation were acting together pursuant to some conspiracy or agreed
plan, and that it is not possible for the plaintiff to show that her psychiatric
condition, or the aggravation of it, was caused by any act or acts of a single individual.
In my opinion this argument does not assist the Commissioner because in a case of this
nature the plaintiff is entitled to recover damages if she is able to establish that the
negligence of the defendant caused her to suffer injury brought about by a succession of
individual acts or decisions. In Barrett v. Enfield London Borough Council [1999] 3
W.L.R. 79, 98G Lord Slynn of Hadley stated:

"I do not think that it is the right approach to look only at each detailed
allegation and to ask whether that in itself could have caused the injury. That must be
done but it is appropriate also to consider whether the cumulative effect of the
allegations, if true, could have caused the injury."

Accordingly I would allow the appeal although, like my noble and learned friend Lord
Slynn, I wish to emphasise that I express no opinion on whether the plaintiff's action is
likely to succeed. All that I decide is that it is not appropriate to strike out the
action before trial.

LORD MILLETT

My Lords, I have had the advantage of reading in draft the speech of my noble and
learned friend Lord Slynn of Hadley. For the reasons he gives I, too, would allow the
appeal.